Secondary Meaning

Secondary Meaning

A doctrine of trademark law that provides that protection is afforded to the user of an otherwise unprotectable mark when the mark, through advertising or other exposure, has come to signify that an item is produced or sponsored by that user.

Under trademark law a mark associated with a marketed product generally cannot receive full trademark protection unless it is distinctive. Trademark protection gives the holder of a mark the exclusive right to use that mark in connection with a product.

Full trademark protection is given when the U.S. Patent and Trademark Office places the mark on the principal register of trademarks. Suggestive, Arbitrary, and fanciful marks distinguish a product from other products, so they automatically qualify for the principal register. Descriptive and generic marks ordinarily do not qualify for the principal register. A person may not, for example, claim the right to the word "fine" in connection with a product because the word is merely descriptive. A descriptive or generic mark may, however, be placed on the supplemental register, which gives the holder of the mark a certain measure of trademark protection. If the mark acquires a secondary meaning after five years of continuous, exclusive use on the market, the mark may be placed on the principal register (15 U.S.C.A. § 1052(f)).

A descriptive or generic mark attains a secondary meaning if the producer so effectively markets the product with the mark that consumers come to immediately associate the mark with only that producer of that particular kind of goods. To illustrate, assume that an apple grower markets red apples under the term "Acme." Because the term is generic, it would not qualify for full trademark protection at first. If, however, customers immediately recognize Acme apples as the apples produced by that grower, after five years the producer may prevent all others from using the mark "Acme" in connection with red apples.

Under 15 U.S.C.A. § 1052(a)–(d), (f), immoral or scandalous marks, national symbols, and names of living figures cannot acquire trademark protection, even through secondary meaning. Surnames generally are not given trademark protection, but a surname may qualify for protection if it acquires a secondary meaning (Ex parte Rivera Watch Corp., 106 U.S.P.Q. 145, 1955 WL 6450 [Com'r 1955]).

Mentioned in ?
References in periodicals archive ?
Among their topics are literal and enriched meaning of sentences with weak definites and bare singulars, the processing of secondary meaning: an experimental comparison of focus and modal particles in wh-questions, whether a so-called "beach" is a beach: an empirically based analysis of secondary content induced by ironic name use, why the meaning of discourse particles is separated from focus-background structure, and interpretations of the embedded expressive motto in Japanese: varieties of meaning and projectivity.
The lack of argument inheritance indicates a lack of compositionality because the full meaning of the verb with its AS is unavailable to the nominal in its secondary meaning. The examples in (19) contrast the readings of a small sample of deverbal nouns in their event readings that permit the realization of the internal argument with a possible secondary reading (such as agent, instrument, patient, or location) that can be assigned to these nouns.
Where the government failed to demonstrate that booking.com was a generic term that could not be trademarked, and Booking.com demonstrated that the descriptive term has gained a secondary meaning, the website is entitled to a trademark.
The SIC also argued that the pink color identifying Postobon's soft drinks had acquired a secondary meaning, which justified the decision to grant a trademark right.
Plaintiff filed a trademark-infringement suit after obtaining incontestability status for its mark that carried a presumption of secondary meaning, which a prior jury rejected.
Trademark Office will register a surname if it has acquired distinctiveness, sometimes referred to as secondary meaning. See, e.g.
Schroeder claims that evening (erev in Hebrew) and morning (boker in Hebrew) have a secondary meaning as well.
The lawsuit detailed that Forever 21 was guilty of copyright infringement over a bag H&M began selling in stores April 2014. H&M's lawsuit, which was handled in a New York federal court, claimed the design has gained "secondary meaning in that H&M is recognized as the original source of the tote bags," according to (http://www.thefashionlaw.com/hm-is-suing-forever-21-for-copying) The Fashion Law.
As the bottle's design had become so recognized as being associated with Coca-Cola, it had acquired "secondary meaning" within trademark law, which refers to the association by consumers of a particular mark, design, or logo with a certain product, company, or brand.
Absent evidence that a scent mark has attained secondary meaning (an expensive feature both to establish and ultimately to prove), the Trademark Manual of Examining Procedure provides that scent marks are registrable on the Principal Register under Section 2(f) or on the Supplemental Register.
even if the feature acquires secondary meaning, a product feature cannot
Descriptive marks are arguably capable of protection only after acquiring of secondary meaning and we consider such marks as constituting a risky investment for brand owners on the basis that acquiring secondary meaning requires substantial investment.

Full browser ?